We
should set strict administrative or legislative limits on the sweetness of deals
available for accomplices to acts such as murder, argues Toronto law professor Alan
Young

There
are things I can't remember and there are things I choose to forget. I have
tried to cast aside the disturbing memories of the Paul Bernardo/Karla Homolka
murders, but, unlike most murder stories, this one refuses to die.

Now after 12 short years in prison, Homolka has returned to the spotlight. Her
comeback tour is making headlines and in the process she retains a perverse,
celebrity status.

The fascination with Homolka cannot simply be explained away as just another
manifestation of a twisted popular culture obsessed with tales of the macabre.
The fascination is fuelled by the overwhelming feeling that a grave injustice
has been left to fester. When justice is properly served a sense of closure can
be achieved, but when the quest for justice is derailed the story of infamy will
live for eternity. Most people believed Homolka escaped justice.

I attended the 1995 Bernardo trial on a daily basis solely because I had been
hired by CTV to provide legal commentary on the nightly news. Most of the time
the trial was like a slow guilty plea.

To many people, it really didn't matter if Bernardo or his wife, Homolka, had
pulled the ligature that caused the death of two young women. They knew it was
one or the other. This couple had already kidnapped, raped and sodomized these
women together, so did it really make a significant moral difference who was
actually responsible for the final killing?

Back in 1995, my disdain for Homolka prompted me to prepare a legal memorandum
requesting that government officials give serious consideration to the
possibility of rescinding her plea bargain arrangement. My basis was that she
had perpetrated a fraud by failing to disclose to police the full extent of her
complicity in Bernardo's crime spree.

The judge appointed to review the propriety of the deal did not agree with my
position. He believed that Homolka's sporadic and incomplete disclosure was a
result of amnesia and post-traumatic stress syndrome.

From my perspective, Homolka's strong performance on the witness stand undercut
the claim that she was more victim than criminal. She appeared to have a cunning
and beguiling intelligence and everything I have read about her, and by her,
left the distinct impression that she was very much in control of her destiny
throughout the whole sordid affair.

Nonetheless, the decision was made in 1996 to let her deal stand and we have to
learn to live with the injustice.

Now that Homolka has served her sentence, public officials are trying to find
some mechanism to control this woman's re-entry into the community. Apparently,
these officials believe her to be a continuing danger, despite the fact that at
Bernardo's trial prosecutors tried to paint a picture of her as a battered
spouse, a victim, an unwilling participant in all manner of evil.

Nobody really knows if this woman is a menace. At the trial, one psychiatric
assessment of her character I heard proposed was that she is a "diagnostic
mystery."

Nonetheless, prosecutors are seeking preventive peace bonds to restrict her life
on the assertion that she poses a continuing risk to the community. This is not
entirely unreasonable, but I do think their actions are also animated by the
overwhelming sense of injustice that keeps the memory of this case alive for an
enraged community.

As much as it pains me to see Homolka reclaim her freedom at 35, the injustice
of her grossly inadequate sentence cannot be rectified 12 years after the fact
by applying for peace bonds and restraining orders.

Perhaps a modest amount of control can be secured in seeking these court orders.
But any attempt to impose significant intrusions upon her life would be a
distasteful form of double punishment.

She has served her sentence. She has paid her debt to society in the eyes of the
law. What is the point of having codified laws and a specific term of sentence
if public officials can get another kick at the can long after the game is over
because they did not play their best hand first time around?

Perhaps a court can legally impose a residency requirement and a condition of
periodic reporting, but otherwise she should be left alone. I do not say this
out of misplaced compassion for Homolka, but out of a respect for the rule of
law.

Although little can be done to set the record straight in 2005, it is puzzling
to me that legal professionals never discuss how to prevent similar injustices
from recurring.

For some reason, lawyers and judges seem to think that analyzing the mistakes
made in the resolution of this case will call into question the profession's
sacred cow of plea bargaining. Addressing the Homolka injustice would not
require the abolition of this morally problematic practice, but it would require
some regulation of this activity.

The profession seems to like the unbridled discretion that underlies plea
negotiations and the entire sentencing process, and this may be why no efforts
are being made to prevent a recurrence of this tragic case.

Here may be a simple solution to prevent another Homolka situation.

In a plea bargaining world we will always have to do deals with accomplices to
get at some murderers. So we should set administrative or legislative limits on
the sweetness of the deals that would be available for the accomplice.

The rule could be that a party to murder who becomes a Crown witness can never
receive a sentence of fewer than 15 years.

Homolka would still deal because this is better than a life sentence.

Or how about a rule that requires consecutive, and not concurrent sentences, for
each death caused? Under this regime, Homolka would have received a sentence in
excess of 20 years instead of 12 years running concurrently.

If our system had fixed rules and guidelines for sentencing that bore some
relationship to actual guilt, then accomplices like Homolka would have less
leverage in bargaining.

If the law would take away some of the vast discretion vested in public
officials, accomplices would have no choice but to take lousy deals.

There may be many simple solutions to curb the worst excesses of plea bargaining
in cold-blooded murder cases, and even in obscure, run-of-the-mill criminal
cases.

But the silence of the government and the legal profession since the Homolka
deal was upheld shows that our politicians and legal professionals like the
world of criminal justice just the way it is.